The contribution/expenditure distinction immortalized by Buckley has its uses and virtues, but one sees its limits with clarity in the briefing of Caperton v. Massey (No. 08-22), the judicial finance case now before the Supreme Court.  The Court will decide whether due process guarantees are offended, and recusal required, if a judge is to hear a case brought for or against a major campaign supporter.  Massey comes to the Court with colorful facts:  the judge, declining recusal, cast the decided vote in favor of the interests of an individual who spent some $3 million to support his elections:  a sum representing more than 60% of all his campaign funding.  In briefing, such as that of the Center for Competitive Politics (CCP), the Court is warned that because the better part of this spending was "independent"—not coordinated with the judicial candidate—it is protected speech and any holding to the contrary would move the Court dangerously away from Buckley's constitutional framework. 

     CCP bangs hard on this point:  it fears that constitutional protections across the board would be shaken if the Court, relying on the difference between judicial and legislative candidates, refuses to preserve the special recognition accorded the "pure speech" of independent expenditures.  It suspects a "slippery slope," at the bottom of which is the end of vital distinctions:  between judicial and legislative candidates, between contributions and expenditures. 

     Distinctions are indispensable, however, and there is a line fairly and reasonably to be drawn between judicial and legislative elections.  The implications of campaign finance activity are not the same for each.  CCP is sure that if the contribution/expenditure distinction is disregarded here, for these purposes, it will be eroded in the legislative electoral domain.  It is not convincing on this point.  "Slippery slope" arguments are made all the time because they are easily made, which is no testament to their worth. 

     But it is true, though this is not the line of argument CCP pursues, that the Buckley distinction between contributions and independent expenditures is doctrinally garbled and, in practical application, unwieldy and inconsistent.  Its weaknesses have shown up time and again. 

     A notorious example is the Court's conclusion that political parties could spend independently of their candidates. Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604 (1996).  This may have seemed fair enough—why could parties not operate independently of its candidates, with all the associated benefits, when independent groups could?—but what followed was truly strange.  The public would not imagine for a moment that parties were really independent of their candidates; the requirement of independence forces parties wishing to spend freely for their candidates into a false relationship to them, to be held at arms-length rather than joined arm-in-arm.  So little was gained in appearances, and a considerable loss was experienced in party politics. 

     And yet this was the best that the Buckley Court could do, in sorting out the "is speech money" question.  The outcome was bound to be messy.  And there are applications of the distinction that do seem to relieve the burdens of regulation where relief seems warranted.  FEC v. Massachusetts Citizens for Life (479 U.S. 238 (1986)) is one such case:  a small nonprofit, producing entirely independently a cheap advocacy piece, should not, the Court evidently felt, have to face the full force of campaign finance enforcement against corruption in fact or in appearance.  And yet this distinction—the appeal to "independence"—did not save the highly organized commercial interests in Austin v. Michican Chamber of Commerce, 494 U.S. 652 (1990).

     The contribution/expenditure distinction is used to resolve issues that are highly sensitive to context and fact—to help courts feel their way to conclusions they can live with if not clearly explain.  In some cases, that the spending is "independent" helps the analysis, in the spender's favor; in others, it is not enough.  "Independence" in spending will not bear all the weight that the respondents, the spenders, in Massey, put on it.  There are differences between judicial and legislative elections that have to influence the decision:  this is a good example of where the contribution/expenditure analysis seems fairly pointless and unresponsive to what is at stake. 

     A decision in Massey that rejects the distinction does not mean that it will be dealt a fatal blow, or that it should be given up for dead.  It always comes back.

Bob Bauer